In re Radience K.

208 A.3d 380

IN RE Child of RADIENCE K.

Docket: Was-18-180

Supreme Judicial Court of Maine.

Argued: December 12, 2018

Decided: May 21, 2019

Randy G. Day, Esq., Garland, and Amy R. McNally, Esq. (orally), Woodman Edmands Danylik Austin Smith & Jacques, P.A., Biddeford, for appellant mother

Laura P. Shaw, Esq. (orally), Camden Law LLP, Camden, for appellant father

Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

Carolyn Adams, Esq., Law Office of Carolyn Adams, Waterville, for appellee Penobscot Nation Department of Social Services.

Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

HJELM, J.

[¶1] A mother and father appeal from a judgment of the District Court (Calais, D. Mitchell, J. ) terminating their parental rights to their child pursuant to Maine's Child and Family Services and Child Protection Act (MCPA), 22 M.R.S. §§ 4001 to 4099-H (2018) and the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.S. §§ 1901 - 1963 (LEXIS through Pub. L. No. 116-8 ). Both parents challenge the court's determination that "active efforts [had] been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family," as required by ICWA. 25 U.S.C.S. § 1912(d). Additionally, the mother challenges the sufficiency of the evidence supporting the court's determination that she is parentally unfit within the meaning of state law, see 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii), and the father challenges the court's denial of his two motions to transfer the case to the Penobscot Nation Tribal Court, see 25 U.S.C.S. § 1911(b), and the denial of his post-judgment motion alleging ineffective assistance of counsel, see M.R. Civ. P. 60(b)(6). We affirm the judgment.

I. BACKGROUND

[¶2] The following facts are drawn from the court's findings, which are supported by competent record evidence, and from the extensive procedural record. In re Evelyn A. , 2017 ME 182, ¶ 4, 169 A.3d 914.

[¶3] The child at issue in this case is an Indian child within the meaning of ICWA. See 25 U.S.C.S. § 1903(4).¹ The Department first became involved with the family in 2012 when the father was charged with crimes arising from his possession of child pornography on the family computer. The following year, he was convicted of multiple counts of possession of sexually explicit material (Class C), 17-A M.R.S. § 284(1)(C) (2018). After the father served the unsuspended portion of the resulting prison sentence, the Department closed the family's case because any contact between the father and the child was to be supervised by the mother.²

[¶4] The Department became involved with the family again in February of 2016, when it petitioned the court for child protection and preliminary protection orders on behalf of the child, see 22 M.R.S. §§ 4032 - 4034, who was then six years old. The Department filed the petition after receiving new information that the father had sexually abused a child to whom he is related. The Department knew of the family's affiliation with the Penobscot Nation and, before filing the petition, notified the Nation of its intent to do so.³ See 25 U.S.C.S. § 1912(a) (requiring that notice be provided to the Indian child's tribe); see also id. § 1903(5) (defining "Indian child's tribe"). The court granted the petition for a preliminary protection order and placed the child in departmental custody. The court also appointed counsel for each parent, see id. § 1912(b) ; 22 M.R.S. § 4005(2), and granted the Penobscot Nation's motion to intervene, see 25 U.S.C.S. § 1911(c) ; 22 M.R.S. § 4005-D(5).

[¶5] After holding a summary preliminary hearing in March of 2016, the court found that the child was in immediate risk of serious harm and ordered that the child remain in the Department's custody. See 22 M.R.S. § 4034(4). The court also addressed the pertinent provisions of ICWA, finding that active, albeit unsuccessful, efforts had been made to prevent the breakup of the Indian family and that continued custody of the child by the parents would result in serious emotional or physical damage to the child.⁴ See 25 U.S.C.S. § 1912(d) - (e). Soon after the court held the summary preliminary hearing, the father was arrested on charges resulting from the child abuse allegations that had been reported to the Department, and he remained incarcerated throughout the pendency of this child protection action.

[¶6] In June of 2016, the mother—who was now represented by her second attorney—and the father agreed to a jeopardy order, see 22 M.R.S. § 4035, in which the court found, among other things, that the child had made detailed disclosures of inappropriate conduct by the father, that the father posed a threat of sexual abuse or exploitation to the child,⁵ and that the mother had failed to protect the child from the risk of sexual abuse or exploitation posed by the father.

[¶7] In the months after the court entered the jeopardy order, counsel for each parent filed a motion to withdraw. The court granted the motions and appointed new counsel for each parent.

[¶8] A contested judicial review hearing began in February of 2017. See id. § 4038. Shortly thereafter, the father's second attorney filed a motion to withdraw. The court granted the motion and appointed the father his third attorney. In late March of 2017, before the second day of the judicial review hearing was held, the Department filed a petition to terminate the parental rights of each parent. See id. § 4052. On the Department's motion, the court consolidated the termination hearing with the ongoing judicial review hearing. See M.R. Civ. P. 42(a).

[¶9] In early June of 2017, each of the parents' third attorneys filed a motion to withdraw. The court granted both motions and assigned the father new counsel; the mother initially stated that she wanted to represent herself but eventually petitioned the court to appoint a new attorney. During the transition of counsel, the parents filed a number of joint motions pro se, which the court addressed at a hearing held on a date in July when the consolidated hearing had been scheduled but was continued by the court because of the recent change in the parents' representation.

[¶10] Because of circumstances unrelated to this appeal, the now-consolidated hearing on the termination petition and the judicial review was not rescheduled to begin until December 4, 2017. Just prior to that date, on November 28, the father filed a motion for the case to be transferred from the District Court to the Penobscot Nation Tribal Court pursuant to ICWA. See 25 U.S.C.S. § 1911(b) ; 25 C.F.R. § 23.115 (2018). The Nation and the child's guardian ad litem each filed a written objection to the transfer.⁶ The court held a hearing on the motion on the first morning of the consolidated hearing and, after receiving evidence, denied it, stating:

The Court finds that this proceeding is at an advanced stage and that the father did not act promptly to request the transfer after he received notice of the action.... He's had a desire to request a transfer for a long time[,] according to his testimony.

... [E]ven assuming that his prior attorneys were indeed not responsive, he's demonstrated an ability on his own to file his own motions.

[¶11] The court then proceeded with the hearing on the termination petition and judicial review, which took place over six days from December of 2017 through February of 2018. The court heard testimony from a number of witnesses, including the mother and the father; caseworkers from the Department and the Penobscot Nation Department of Social Services; therapists for the mother and the child; one of the child's foster parents; and a qualified expert witness, as ICWA requires, designated by the Penobscot Nation, see 25 U.S.C.S. § 1912(f) ; 25 C.F.R. § 23.122 (2018).

[¶12] On April 19, 2018, the court entered a judgment granting the Department's termination petition. Addressing the standards set out in the MCPA, the court found by clear and convincing evidence that each parent was unwilling or unable to protect the child from jeopardy or take responsibility for the child and that those circumstances were unlikely to change within a time reasonably calculated to meet the child's needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii). The court also found by clear and convincing evidence that termination of each parent's parental rights is in the best interest of the child. See id. § 4055(1)(B)(2)(a). Then, applying the provisions of ICWA, the court found that the Department had proved by clear and convincing evidence that active remedial efforts had been made to prevent the breakup of the Indian family and that those efforts had proved unsuccessful, see 25 U.S.C.S. § 1912(d), and also that the Department had proved beyond a reasonable doubt that continued custody of the child by the parents was likely to result in serious emotional or physical damage to the child, see id. § 1912(f) —a conclusion supported by the testimony of the Nation's ICWA-mandated expert witness.

[¶13] In its judgment, the court made the following findings of fact, all of which are supported by competent record evidence.

Mother has failed to demonstrate through her conduct that she understands the risk posed by the Father and that she is able to protect the child.

... Mother permitted [Father to have] unsupervised contact [with the child,] which, based on the child's disclosures, enabled Father to watch naked pictures or movies with the child while naked. Despite engaging in counseling and the Non Offenders Group, something she did on an inconsistent basis, Mother continued to maintain contact with the Father, calling him daily and visiting him on weekends during his incarceration to discuss this case.... Mother's actions speak much more loudly than do her words and the court does not find her testimony credible.

The Department through its various

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